The European Court of Human Rights has published its first judgment on the liability of internet providers for the contents of online comments since last year's Grand Chamber decision in Delfi AS v Estonia.

The Delfi decision held that internet providers and news portals can be responsible for user-generated content which is "manifestly unlawful" and it is incumbent on those providers to monitor such content and remove it accordingly. In that case, the Grand Chamber held that Estonia had not violated the applicant news portal's Article 10 rights by holding it liable for the defamatory user-generated comments it had hosted.

In contrast, this latest decision has held that the Article 10 freedom of expression rights of a self-regulatory body of internet content providers and a news portal (which had been held liable by the Hungarian courts for defamatory user-generated statements on their sites) had been infringed.

The judgment in Magyar was at pains to emphasise that it did not limit the ambit of Delfi and that this case turned on its specific facts.

Background

The applicants were two Hungarian legal entities, Magyar Tartalomszolgaltatok Egyesulete ("MTE") and Index.hu Zrt ("Index"). MTE is a self-regulatory body of Hungarian internet content provider and Index is the owner of one of the largest internet news portals in Hungary. Both applicants allowed users to comment on publications hosted on their portals. Both had a disclaimer in their terms and conditions stipulating that the writers of the comments were responsible for their contents. A notice-and-take-down system was also in place on both sites, but neither MTE or Index strictly moderated the comments.

In 2010 MTE published an opinion on its webpage which criticised the business practices of two real estate websites for misleading their clients. Users subsequently posted offensive and vulgar comments on the websites of both MTE and Index about the real estate websites.

The company operating the websites then brought a civil action against MTE and Index on the basis that the comments had damaged its reputation. The Hungarian national courts upheld the claimant's complaint, finding that the comments had been offensive, insulting, humiliating and went beyond the acceptable limits of freedom of expression. The courts found that the comments constituted edited content and MTE and Index were liable for enabling their publication (notwithstanding the fact that they had removed them as soon as they learned of the claim, which had been instituted without any pre-action correspondence).

MTE and Index subsequently brought a complaint in the European Court of Human Rights on the basis that the Hungarian courts' rulings had infringed their Article 10 rights.

Judgment

The ECtHR was required to determine whether the Hungarian courts' interference with freedom of expression was necessary in a democratic society in the interests of protection of the reputation or rights of others. When determining this, the ECtHR affirmed that it was required to ascertain whether the Hungarian courts had struck a fair balance when protecting the values enshrined under Article 8 and Article 10, which in these circumstances were in conflict with each other.

The Court determined that the Hungarian courts had not carried out a proper balancing exercise between the competing rights. Crucially, they had accepted at face value that the comments had been unlawful as being injurious to the reputation of the real estate websites.

The Court reiterated its ruling in Delfi that internet service providers and news portals could have liability imposed on them for failing to remove user comments which were clearly unlawful, i.e. hate speech and incitement to violence. The comments on the MTE and Index websites did not fall into this category. The comments were vulgar, but not clearly unlawful. The Court gave one example of a user comment on the applicants' webpages as an illustration (which may have sounded better in the original Hungarian):

"People like this should go and shit a hedgehog and spend all their money on their mothers' tombs until they drop dead".

The Grand Chamber in Delfi established identified several specific criteria as being relevant for determining an interference with Article 10 rights in the context of an applicant internet service provider or other internet intermediary. Although these criteria were established for the purpose of determining liability of large internet new portals for not having promptly removed clearly unlawful user comments from their websites, they were also useful for assessing the proportionality of interference in the present case (i.e. without the pivotal element of hate speech). The Court then went onto examine the specific criteria by reference to the facts in the case.

(i) The context and content of the comments

The Court noted that the comments were relevant to a matter of public interest (a misleading business practice) which had already been the subject of complaints to consumer protection services in Hungary. Additionally, whilst the comments were vulgar (and offence may fall outside the protection of Article 10 if it amounts to wanton denigration, e.g. Skalka v Poland), vulgarity in itself is not decisive in the assessment of offensive expressions.

Interestingly, the Court also took note of the specific context of internet user comments, noting that these belonged to "a lower register of style" which was common on many internet portals. Therefore, this reduced the impact that could be attributed to those expressions.

(ii) Liability of the authors of the comments

The Court stated that the national courts had simply assumed that MTE and Index were liable for the users' comments without actually weighing up the liability of the original authors of the comments against that of MTE and Index.

This was difficult to reconcile with existing ECHR case law (e.g. in Jersild v Denmark) which established that punishing a journalist for disseminating statements made by another person in an interview would hamper the contribution of the press to discussion of matters of public interest.

(iii) Measures taken by the applicants and the conduct of the injured party

The Court noted that the Hungarian courts had not properly examined the conduct of the applicants to prevent defamatory comments or remove them. MTE and Index had taken general measures to prevent defamatory comments and remove them if posted. The Hungarian courts' position that by allowing unfiltered comments the applicants should have expected that some of those might have been in breach of the law amounted to "an excessiveandimpracticable forethought capable of undermining the right to impart information on the internet".

(iv) Consequences of the comments for the injured party

The Court also noted that there was a difference between the commercial reputational interest of a company and the reputation of an individual concerning his or her social states. Whereas defamatory statements made against the latter might have repercussions on one's dignity, interests of commercial reputation were devoid of that moral dimension. The owner of the real estate websites was of course a company and not an individual.

Further, given the ongoing enquiries into the real estate websites' conduct at the time of publication of the comments, the Court was not convinced that the comments had any additional significant impact on their reputation.

(v) Consequences of the comments for the applicants

The Court was very concerned that by holding the applicants liable, such liability could have foreseeable negative consequences on the comment environment of an internet portal – to the extent it could impel the portal to close the commenting space altogether. This could have a chilling effect on the freedom of expression on the internet and could be particularly detrimental for a non-commercial website.

Based on its analysis outlined above, the Court held that there had been a violation of the applicants' Article 10 rights.

Comment

The judgment may be seen as a step back from the decision in Delfi, but in his concurring opinion, Judge Kūris was eager to emphasise that although the judgment resulted in the opposite conclusion to that found in Delfi, it did not depart from the Delfi principles. Consequently, the judgment "should in no way be employed by internet providers, in particular those who benefit financially from the dissemination of comments, whatever their contents, to shield themselves from their own liability, alternative or complementary to that of those persons who post degrading comments, for failing to take appropriate measures against these envenoming statements".

Judge Kūris stated that the case was merely further evidence that the "balance to be achieved in cases of this type is a very subtle one". The decision in Delfi therefore appears unaltered, but Magyar has extended its principles to the context of user comments which are not 'clearly unlawful'.

Taking both the decisions in Delfi and Magyar together, there are now several key principles which the ECtHR will examine with reference to the specific facts of the case. Most important of these principles appear to be:

how quickly the comments were removed from the website – an effective notice-and-take-down system can function in many cases as an appropriate tool for balancing the rights and interests of those involved; and

the nature of the internet provider or portal – the larger and more sophisticated this is, the greater the responsibility it may have for moderating and removing defamatory user comments.

On this basis, if user comments constituting hate speech are posted on a large internet new portal and those comments are not taken down for a significant period, the greater the likelihood that an interference with that portal's Article 10 rights will be justified. Internet portals should therefore still be proactive in removing content which is clearly unlawful. Internet portals and providers may still be liable for comments which are not 'clearly unlawful', but it appears that the level at which interference with Article 10 would be justified in those circumstances is significantly higher.

The law in this area is still at a very early stage, and there is yet to be a case in England and Wales relating to internet user comments which post-dates the decision in Delfi. The judgment in Magyar will provide additional welcome guidance when such a case inevitably ends up in the High Court.